Matone v. Sycamore Realty Corp.

Jul 25, 2006
Versions:31 A.D.3d 721
818 N.Y.S.2d 463

In an action, inter alia, to set aside a deed, the defendant Sycamore Realty Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated May 7, 2004, as granted that branch of the plaintiffs’ contested motion which was for leave to enter judgment against it upon its default in appearing.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was for leave to enter judgment against the appellant upon its default in appearing is denied, with leave to renew upon proper papers.

The plaintiffs served the appellant with a summons with notice by delivery upon the Secretary of State (see Business Corporation Law § 306; CPLR 305 [b], 311 [a] [1]). The appellant served a belated notice of appearance, which the plaintiffs rejected as untimely. The plaintiffs moved, inter alia, for leave to enter judgment against the appellant based on its default in appearing, but failed to support their motion with an affidavit of the facts constituting the claim (see CPLR 3215 [f]). Accordingly, that branch of the plaintiffs’ motion which was for leave to enter a default judgment against the appellant should have been denied. The plaintiffs may renew that branch of their motion upon proper papers (see Blam v Netcher, 17 AD3d 495, 496 [2005]; Henriquez v Purins, 245 AD2d 337, 338 [1997]).

Schmidt, J.P., Crane, Krausman, Skelos and Lunn, JJ., concur.